**********

Comments (2)

**********

Paul Sipio:

I. FACTS

Claimant, a singer/songwriter, alleged that Defendants infringed her copyright in a musical work entitled “Forever After,” which was recorded with a musical accompaniment arranged and performed by Peter Twomey. The second Defendant, Warner Music UK Limited, was a record company. One of its artists whose recordings it released in the United Kingdom was the internationally famous Madonna. She co-wrote a song with Patrick Leonard entitled “Nothing Really Matters,” which appeared on a Madonna album entitled RAY OF LIGHT. The first and third Defendants, Warner/Chappell Music Limited and EMI Publishing Limited, published Madonna’s and Patrick Leonard’s musical works in the United Kingdom, respectively.

Claimant averred that the recording of “Forever After” included an original musical work, which consisted of the combination of vocal expression, pitch contour, and syncopation of or around the words “does it really matter,” but did not extend to the melody surrounding the words. Claimant pleaded that the words “does it really matter” comprised the song’s lyrical hook and alleged that the copyright in “Forever After” was infringed by Defendants’ activities in relation to “Nothing Really Matters.” Defendants applied to strike out the claim, or for summary judgment, contending that Claimant’s averments comprised no more than features of, or extractions from, what properly and objectively was to be regarded as the relevant work for copyright purposes. Claimant indicated that, if this was right, she would not seek to amend her claim by pleading that Defendants relied on “Forever After” in writing “Nothing Really Matters.”

II. ANALYSIS

In dismissing Claimant’s claim, the court agreed with Defendants that it is not open to a claimant to pick and choose the elements of a work upon which she relied in order to make the question of whether a substantial part had been copied more likely to be answered in her favor. Furthermore, the court observed that what the copyrighted work was in any given case was not governed by what the claimant chose to say that it was. Rather, it was a matter for objective determination by the court. Moreover, the court said that, as a general proposition, circumstances could exist that would justify regarding a constituent part of a larger entity as in itself a copyrighted work, but that could be only where the part in question could fairly be regarded as so separate from the material with which it was collocated as itself to constitute a copyright work. In this case, the court thought it obvious that identifying a separate copyrighted work in this way was not possible. Accordingly, the claim could not succeed and was struck out.

The Plaintiff alleged her copyright in the song Forever After (composed November 1995-March 1996) had been infringed by defendants in their song Nothing Really Matters (released 1998). In turn the defendant’s moved to have the claim stuck out as the claim had no reasonable grounds for success and the method the plaintiff had identified the alleged copied elements was contrary to copyright law in general.

The case took almost four years to reach the court and went under a considerable number of amendments during this time. Eventually the alleged similarities in the musical elements were said to subsist in the lyrics and melody.

The case was dismissed as in copyright one cannot
cherry pick the elements of the song that are the most similar
in an attempt to build a stronger case. As the case was struck
out due the plaintiff's application of the law the question of
the actual similarity between the songs was not addressed to a
high degree.